### EA NEY GENERAL
OFTEXAS AUSTIN 11,TrcxAs wA<:<:oNEK

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,i*lSF-H*L October 15, 1964
Honorable Charles A. Allen Opinion No. C-332 CriminalDistrictAttorney Marshall,Texas Construction of Article g&32, Vernon's Penal Code. Dear Mr. Allen:

In your re ueet for an opinion,you ask whether the languageof Article % 66-32, which pPe8OribeS the form of the petition In a local option election, is mandatoryor directory. That provision reads:

"The petition for a local option election seeking to legalize the sale of alcoholicbeVePage8 of one #ormore of the various types and alcoholic content8 shall be headed 'Petitionfor Local Opt-ion Electionto-Legalize,' and shall contain a atatement just ahead of the sign-s of the petitioners, as follows: 'It 18 the hope, purpose and intent of the petitionerswhose signaturesappear hereon to see legalizedthe sale of alcoholicbeveragesreferred to in the Issue set out above."' (&phaSiS supplied) You state In your request that of the 140 petitions submittedto the Commiaslonerfs Court for action 'thereon, 50 of them were merely headed "Petitionfor Local Option Election," and did not contain the exact wording of the above provision. You state further that the other 90 petitions containedth@ express wording of the statute. The ultimate question,then, is whether or not 50 petitionswill have to be thrown out for the reason that they are not in strict compliance with the,

statute. Ordinarily,

when the word "shall" i8 used, the presumption is that it is in the imperative, and not in the direcWcDaren v. State, 82 Tex.Crlm.449, 199 S.W. 811 ~?~V~?%en there Is room for construction, mandatory or permissive words are to be given the meaning that will best express legislativeIntent. 53 Tex.Jur.26,29, Statutes,Sec. 16.

Prior to 1963, the statutoryrequisitesfor a local ,option petition under Article 666-32 were:

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. . . The petition so iSSued shall clearly state the issue to,be voted upon in such election, which shall be the sam'e issue as that set out in the application;

. . .' -1581-HonorableCharles A. Allen, Page 2 (C-332)

Under this provision It was not required that the Issue be stated in any particular language,statutoryor otherwise. The Legislature,

authorizedsome latitude of statement,limited only by the requirementthat the issue be o~learl ---JD#. stated. See Hutaon v. Smith, 191 S.W.2d 779 (Tex.Civ.App.

In 1963, however, the Legislatureamended the statutes-. by stating the exact language to be used on a local option petltion (Article666-32, above quoted). We feel that by so doing, the LegislatureIntendedto eliminatethe latitudeallowedunder the prior law.

In light of the foregoing, we hold that the language in paragraph 5, Section 32 of Article 666 is mandatory. To hold otherwisewould be to hold the 1963 amendmentto Article 666-32 of no consequence. SUMNARY

The ,language

of Article 666-32, Vernon's Penal Oode, which prescribe0the form of a petltlon for a local option election;18 mandatory, not directory. ReSpectfully submitted, WAGGONERCARR Attorney General of Texas

BSC/lh APPROVED: OPINION COMNITTEE W. V. Geppert, Chairman Howard Fender Mary K. Wall John Reeve8 George Black APPROVED FOR THE ATTORNEY **GENERAL** BY: Roger Tyler

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